The Cybercrime Bill, which has had its second reading in the House of Representatives, contains a number of provisions that no one could really quarrel with. It criminalises hacking into computers systems, illegally intercepting transmissions to or from a computer system, and illegally interfering with, damaging or deleting computer data. At a more personal level, it prohibits what is commonly referred to identity theft, it tackles the growing problem of predator adults luring children via the Internet to engage in child pornography, and it criminalises the dissemination of nude photographs or videos of anyone without that person's consent. Cyber bullying and cyber extortion are also now criminal offences, as is inundating a person's computer system with multiple electronic mail messages–in other words, spam. In short, the bill seeks to outlaw practically all of the ways in which human beings have managed to abuse the access and relative anonymity which the Internet provides.
But tucked away in between these salutary measures is a conspiracy of provisions which are no doubt intended to outlaw cyber espionage, but which at the same time have the potential to strike at the heart of investigative journalism and to silence whistleblowers. Attention has already been drawn to these provisions in editorials and news commentaries. I am referring to those provisions which criminalise copying computer data to a memory stick without lawful excuse or justification, or obtaining computer data for oneself or another person. More comprehensively, any person (which would include a journalist) who receives or gains access to computer data from another person (eg, a whistleblower), whether or not he knows that the other person (ie, the whistleblower) was authorised to obtain the data is liable to criminal prosecution.
Likewise, any person who obtains computer data through authorised means (the typical whistleblower) and shares that information with another person (the investigative journalist who typically is not authorised to receive such information) commits an offence. In every such case, the penalty is $1 million and three years imprisonment if convicted before a magistrate, or $2 million and imprisonment for five years if convicted before a judge and jury.
Whichever way you cut it, one effect of these provisions, if left unqualified, is to discourage, by the threat of criminal prosecution, the public disclosure of any information stored in a computer which might reveal wrongdoing on the part of corrupt public officials and people in the private sector alike. If enacted as is, they would put an end to much of the investigative journalism which has led to the detection of misconduct in state enterprises and ministries. It is a veritable rouge's charter.
On May 11, 2006, T&T ratified the United Nations Convention Against Corruption. In the foreword to the convention, the then secretary general, Kofi Annan, described corruption as an "insidious plague" that "undermines democracy and the rule of law," that "hurts the poor disproportionately by diverting funds intended for development" and "feeds inequality and injustice." Among the measures which T&T agreed to implement in its fight against corruption was the establishment of "systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions." We also committed ourselves to protecting people who report wrongdoing "in good faith and on reasonable grounds" from "any unjustified treatment." The blanket criminalisation of the dissemination of computer data hardly fulfills the international obligations we have undertaken.
Whistleblowing and the investigative reporting which provides the channel by which the blast of the whistle can be heard have been recognised as indispensable tools in the fight against corruption. As Transparency International notes in its policy position on whistleblowing: "The clandestine nature of corrupt behaviour means that it may never come to light unless cases are reported by people who discover them." But whistleblowing comes at great personal sacrifice. A person who blows the whistle on corrupt public officials or fellow employees "may lose their jobs, endanger their career prospects and even put their own lives at risk." And even where fear of reprisal is not a factor, "indifference, ... misplaced loyalty as well as an overall culture of silence often deter potential witnesses from speaking out."
Transparency International therefore recommends comprehensive legislation which would protect the whistleblower who acts in good faith and in the public interest. Such legislation has been enacted in the United Kingdom. The United States has gone even further in empowering citizens with evidence of fraud to sue on behalf of the Government to recover stolen funds. It is reported that since 1986, $21 billion dollars have been recovered through whistleblower claims, and it is estimated that hundreds of billions of dollars worth of fraud has been deterred.
Even so, Transparency International recognises that whistleblowing legislation by itself may not be enough. What is needed is "a legislative environment, ensuring freedom of expression, access to information and the existence of an independent media... to enable a culture of whistleblowing." Journalistic sources are to be protected, they recommend, "even if journalists might base their reports at times on erroneous information given in good faith."
No doubt the people who drafted the provisions of the Cybercrime Bill under scrutiny intended to cover cyber espionage only. It may be argued that by criminalising the dissemination of computer data only, where this is done without lawful excuse or justification, the intention is to provide an escape route for whistleblowers and investigative journalists. But without comprehensive legislation which details and makes clear the circumstances under which whistleblowers and their enabling reporters are protected, the sharing of information which might tend to reveal corrupt activities will only be carried out if the bill is passed as is under threat of criminal prosecution. The bill needs to be amended to make the position clear. Otherwise it can only have a chilling effect on freedom of expression.